Ark. Code Ann. § 5-4-616 (2026)
Procedures following remand of capital case after vacation of death sentence — Retroactive application
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Notwithstanding § 5-4-602(3) that requires that the same jury sit in the sentencing phase of a capital murder trial, the following shall apply:
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- Upon any appeal by the defendant when the sentence is of death, if the appellate court finds prejudicial error in the sentencing proceeding only, the appellate court may set aside the sentence of death and remand the case to the trial court in the jurisdiction in which the defendant was originally sentenced.
- No error in the sentencing proceeding shall result in the reversal of the conviction for a capital felony.
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When a capital case is remanded after vacation of a death sentence, the prosecutor may move the trial court to:
- Impose a sentence of life without parole, and the trial court may impose the sentence of life without parole without a hearing; or
- Impanel a new sentencing jury;
- If the prosecutor elects subdivision (a)(1)(C)(ii) of this section the trial court shall impanel a new jury for the purpose of conducting a new sentencing proceeding;
- A new sentencing proceeding is governed by the provisions of § 5-4-602(4) and (5) and §§ 5-4-603 — 5-4-605;
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- Any exhibit and a transcript of any testimony or other evidence properly admitted in the prior trial and sentencing is admissible in the new sentencing proceeding.
- Additional relevant evidence may be admitted including testimony of a witness who testified at the previous trial; and
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The provisions of this section:
- Are procedural; and
- Apply retroactively to any defendant sentenced to death after January 1, 1974.
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- This section shall not be construed to amend a provision of § 5-4-602 requiring the same jury to sit in both the guilt and sentencing phases of the original trial.
History. Acts 1983, No. 546, § 1; A.S.A. 1947, § 41-1358.
Case Notes
Constitutionality.
Section is not unconstitutional, since state may not seek any greater penalty or punishment against defendant for crime he committed than that which was available under prior law. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 484 U.S. 917, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987).
The retroactive application provision of this section does not violate the ex post facto clause. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).
Applicability.
When there is no error other than in the sentencing phase of the trial, it is appropriate to follow this section, vacating the sentence of death and remanding the case to the trial court. Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), amended, 295 Ark. 692A, 752 S.W.2d 762 (Ark. 1988).
Prior to the enactment of this section, upon a finding of reversible error at the sentencing phase, defendants would have been retried on both guilt and penalty issues. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).
It was error for three murder victims' survivors to testify during the sentencing phase that they desired the jury to impose the death sentence; the testimony resulted in a violation of defendant's Eighth Amendment rights. The case was remanded to the trial court for resentencing pursuant to this section. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 95 (Feb. 12, 2010).
Construction With Other Laws.
There is no direct conflict between Rule of Evidence 804(b)(1) and subdivision (a)(4) of this section, as this section is limited specifically to resentencing in criminal trials and the rule of evidence applies to all proceedings whether civil or criminal; thus, in a resentencing hearing in a murder prosecution, the trial court properly allowed the use of testimony from a prior sentencing hearing without evidence of unavailability. Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001), rehearing denied, Greene v. Arkansas, 534 U.S. 858, 122 S. Ct. 135 (2001).
Evidence.
State should not be precluded from introducing additional relevant evidence on remand at a resentencing trial, especially when defendant's guilt already has been established and when defendant has not shown or demonstrated prejudice that would result from the admission of such evidence. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 484 U.S. 917, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987).
Subdivision (a)(4) of this section provides that relevant evidence from the prior trial may be admitted without any further foundation. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).
Place of Resentencing.
This section requires that following remand after vacation of his death sentence, the resentencing was to be conducted in the county where the defendant was originally tried, found guilty and sentenced, even though the murder took place in another county. Pickens v. Circuit Court, 283 Ark. 97, 671 S.W.2d 163 (1984).
This section is not local or special law changing the venue in criminal cases; this section did not fix venue, but merely reinvested venue for resentencing purposes in county parties agreed on. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 484 U.S. 917, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987).
Motion for change of venue at resentencing denied where defendant did not demonstrate sufficient prejudice and had waived any objection after concurring in the makeup of the jury. Hill v. State, 331 Ark. 312, 962 S.W.2d 762, cert. denied, 525 U.S. 860, 119 S. Ct. 145, 142 L. Ed. 2d 118 (1998).
Cited: Pickens v. Lockhart, 802 F. Supp. 208 (E.D. Ark. 1992); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995); Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).